The living instrument doctrine is a method of judicial interpretation developed and used by the

European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...

to interpret the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...

in light of present-day conditions. The doctrine was first articulated in '' Tyrer v. United Kingdom'' (1978), and has led both to different rulings on certain issues as well as evaluating the human rights implications of new technologies.

Origin and development

The living instrument doctrine has been used from the beginning by the

. It was first articulated during the case '' Tyrer v. United Kingdom'' (1978). In ''Tyrer'' the court rejected the argument that because people in the

Isle of Man ) , anthem = "O Land of Our Birth" , image = Isle of Man by Sentinel-2.jpg , image_map = Europe-Isle_of_Man.svg , mapsize = , map_alt = Location of the Isle of Man in Europe , map_caption = Location of the Isle of Man (green) in Europe ...

approved of

judicial corporal punishment The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

, such could not be a violation of

Article 3 of the European Convention on Human Rights Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment". An absolute right Article 3 is an absolute right. The right is unqualified and cannot be balanced against the rights and ...

. The judgement stated that "The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions." It went on to say that the verdict was being made in the context of the outlawing of corporal punishment in other European countries. Other early cases which helped develop the living instrument doctrine include '' Marckx v. Belgium'' (1979), in which the court decided that it was no longer justified to treat

illegitimate children Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as ''b ...

differently, and ''

Dudgeon v United Kingdom ''Dudgeon v the United Kingdom'' (1981) was a European Court of Human Rights (ECtHR) case, which held that Section 11 of the Criminal Law Amendment Act 1885 which criminalised male homosexual acts in England, Wales and Northern Ireland violate ...

'' (1981), in which the court judged "as compared with the era when that legislation was enacted, there is now a better understanding, and in consequence, an increased tolerance of homosexual behaviour to the extent that it is no longer considered to be necessary or appropriate" to criminalize homosexuality. According to law scholar George Letsas, these cases have a pattern: a case involving a moral issue comes to the Court, the Court notes the importance of the moral aspect in the member state, but also considers developments in other Council of Europe states. In most cases, this resulted in a violation of a Convention right being found. In '' Mamatkulov and Askarov v. Turkey'' (2005), the court stated that it "upholds individual rights as practical and effective, rather than theoretical and illusory protections". The judgement for '' Demir and Baykara v. Turkey'' (2008) stated that the living instrument doctrine, in addition to being in light of present-day conditions, also meant interpretation "in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights".

Effects

Because the living instrument doctrine prioritizes whether there is a European consensus in a certain interpretation of a Convention obligation, it is closely related to the Convention interpretation concepts of autonomous concepts and

margin of appreciation The margin of appreciation (or margin of state discretion) is a legal doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights to judge whether a state party to the European Convention on ...

. In cases where the Court did not find a European consensus on a particular issue, such as '' Sheffield and Horsham v United Kingdom'' (1998) on the subject of sex-reassignment surgery, it was much less likely to find a violation because it considered that the state had a wide margin of appreciation on how to treat a given issue. In the early 2000s, the Court loosened its reliance on European consensus and began to consider a trend in member states' laws sufficient to find that present-day conditions had changed with regard to a particular issue according to the living instrument doctrine. Areas in which the court considers that present-day conditions have evolved include

gender equality Gender equality, also known as sexual equality or equality of the sexes, is the state of equal ease of access to resources and opportunities regardless of gender, including economic participation and decision-making; and the state of valuing d ...

, environmental regulation, and

transgender rights A transgender person is someone whose gender identity is inconsistent or not culturally associated with the sex they were assigned at birth and also with the gender role that is associated with that sex. They may have, or may intend to establi ...

. Letsas also finds differences in how blasphemy, sexual advice for adolescents, and obscenity are treated by the Court. The Court has given increased scrutiny to differential treatment exclusively based on ethnicity, gender, religion, or

sexual orientation Sexual orientation is an enduring pattern of romantic or sexual attraction (or a combination of these) to persons of the opposite sex or gender, the same sex or gender, or to both sexes or more than one gender. These attractions are generall ...

, which it is now more likely to label unjustified discrimination. In addition, with the proliferation of alternative family arrangements, the court has expanded its definition of family under Article 8, for example to

same-sex couples A same-sex relationship is a romantic or sexual relationship between people of the same sex. ''Same-sex marriage'' refers to the institutionalized recognition of such relationships in the form of a marriage; civil unions may exist in countries ...

, as in ''

Oliari and Others v Italy ''Oliari and Others v. Italy'' (Application nos. 18766/11 and 36030/11) is a case decided in 2015 by the European Court of Human Rights (ECtHR) in which the Court established a positive obligation upon member states to provide legal recognition fo ...

'' (2015). Because of the living instrument doctrine, the Court has ruled on the human rights implications of technologies that did not exist when the Convention was drafted, on issues such as

biotechnology Biotechnology is the integration of natural sciences and engineering sciences in order to achieve the application of organisms, cells, parts thereof and molecular analogues for products and services. The term ''biotechnology'' was first used ...

, internet freedom, personal data, mass surveillance, and surrogacy.

Reception

Supporters of the doctrine note that it is not prohibited by the treaty itself to take an expansive and/or evolutive interpretation of the rights enumerated therein. Stefan Thiel argues that the living instrument doctrine is allowed both by the Convention and relevant international law. Dutch judge Marc Bossuyt stated in a speech that the living instrument doctrine is "a

Trojan horse The Trojan Horse was a wooden horse said to have been used by the Greeks during the Trojan War to enter the city of Troy and win the war. The Trojan Horse is not mentioned in Homer's ''Iliad'', with the poem ending before the war is concluded, ...

for

judicial activism Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...

, giving Strasbourg judges the liberty to find what they want to find in the interstices of Convention rights". Other critics argue that the state parties should only be bound by the original obligations as understood in 1950. However, Sonja Grover argues that insisting on a

originalist In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...

and/or conservative

textualist Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...

understanding of Convention rights can also be considered a form of judicial activism which denies individuals the full exercise of their rights. According to Letsas, the living instrument doctrine is not activist because "contracting states have given the Court jurisdiction to protect whatever human rights people ''in fact'' have, and not what human rights domestic authorities or public opinion ''think'' people have". Accordingly, the Court should not give any more weight to

majoritarian Majoritarianism is a traditional political philosophy or agenda that asserts that a majority (sometimes categorized by religion, language, social class, or some other identifying factor) of the population is entitled to a certain degree of prim ...

preferences across the entire Council of Europe area than within a particular state, and is justified in raising the threshold of human rights protection, despite the blowback it has received from certain rulings.

Other uses

The living instrument doctrine has also been used by the

United Nations Human Rights Committee The United Nations Human Rights Committee is a treaty body composed of 18 experts, established by a 1966 human rights treaty, the International Covenant on Civil and Political Rights (ICCPR). The Committee meets for three four-week sessions per ...

and has been proposed with regards to the

Charter of Fundamental Rights of the European Union The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclai ...

References

External links

31 January 2020 official dialogue
The European Convention on Human Rights: living instrument at 70 Legal interpretation European Court of Human Rights